JESSIE CLINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jessie Cline appealed his sentencing after entering guilty pleas to burglary and theft charges. The appellate court vacated his sentence and remanded for resentencing because the trial court imposed an improper general sentence on both counts and violated statutory limits on split sentences under Florida law.
The court held: (1) a defendant may voluntarily request resentencing without violating double jeopardy principles; (2) general sentences on multiple counts are improper; and (3) the split sentence violated Florida's statutory prohibition on incarceration exceeding one year under the split sentence alternative.
[1] A defendant's request to withdraw a previously imposed sentence and have a new sentence imposed waives any double jeopardy claim regarding the resentencing to a potential…
[2] A general sentence imposed on multiple counts is improper.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the court cannot resentence a defendant to a longer term of incarceration after he has begun to serve his sentence, without violating his double jeopardy rights”
States the double jeopardy principle that would prevent resentencing, but notes it does not apply when the defendant voluntarily requests the change
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Join FLexlaw to unlock all legal intelligenceAppellant entered guilty pleas to burglary of a structure and theft of a motor vehicle pursuant to a plea agreement limiting sentences to five years c…
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ORFINGER, Judge.
Appellant entered a plea of guilty to one count of burglary of a structure and one count of theft of a motor vehicle. The plea resulted from negotiations wherein it was agreed that appellant would receive no more than five year concurrent sentences on both counts.
After finding that the plea was voluntarily and intelligently made, the trial court accepted the plea, adjudicated appellant guilty and sentenced him to a five year term, one year of which was to be served in the county jail, and the remaining four years on probation. After learning that appellant would not accept the probation, appellant came before the trial court, who carefully inquired of appellant if it were true that appellant wished to have the sentence withdrawn. Appellant clearly chose to have his sentence withdrawn and a new sentence imposed, so the trial court honored his request, withdrew the original sentence and imposed a five year split sentence alternative, two and a half years to be served in prison and the remaining two and a half years on probation, less credit for time served.
Appellant contends: (1) that the trial court could not withdraw his sentence and then sentence him to more time in prison; (2) that the sentence was a general sentence on both counts and is thus improper; (3) that the split sentence violates the principles of Villery v. The Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1980).
On the first point, appellant relies on cases such as Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978) and Katz v. State, 335 So. 2d 608 (Fla.2d DCA 1976) for the proposition that the court cannot resentence a defendant to a longer term of incarceration after he has begun to serve his sentence, without violating his double jeopardy rights. However, in all the cited cases, the alteration in the sentence was involuntary, with the defendant in each case objecting to any change. Here, the defendant requested the court to withdraw the sentence and impose a new one, so the principle of the cited cases does not apply.
Appellant is correct in his assertion that the general sentence on both counts is improper. Dorfman v. State, 351 So. 2d 954 (Fla.1977); Price v. State, 393 So. 2d 69 (Fla. 5th DCA 1981).
The Supreme Court has revised the opinion in Viilery, (April 23, 1981) [1981 FLW 313] and has made it clear that the split sentence alternative provided for in section 948.01(4), Florida Statutes, prohibits incarceration for a term which equals or exceeds one year, so the last sentence imposed here must be revisited by the trial court.
The sentence is vacated and the case is remanded to the trial court for resentencing.
Sentence VACATED, case REMANDED.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…inally included within the probation order.8 Appellant is not required to accept probation and may reject the court’s attempt to effect his rehabilitation by conditions of probation rather than by a straight term of imprisonment. See Cline v. State, 399 So. 2d 1115 (Fla. 5th DCA 1981). A consideration by the full court being deemed necessary to maintain uniformity of decisions in this court on matters involved in this case, the court on its own motion determined this cause en banc. See Fla.R. App.P. 9.331(a)…
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Padgett v. State, 497 So. 2d 724 (Fla. 1st DCA 1986)…. State, 357 So. 2d 489 (Fla. 1st DCA 1978). See also Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984), and Katz v. State, 335 So. 2d 608 (Fla. 2d DCA 1976) [*726] (rule 3.800 does not permit increase of a lawful sentence). Compare Cline v. State, 399 So. 2d 1115 (Fla. 5th DCA 1981) (defendant requested that court withdraw sentence and impose a new one, therefore, principle that court cannot resentence defendant to a longer term of incarceration after he has begun to serve his sentence did not apply). James…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Dorfman v. State, 351 So. 2d 954 (Fla. 1977)
- Elliot Katz v. State, 335 So. 2d 608 (Fla. 2d DCA 1976)
- Myles C. Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978)
- Price v. State, 393 So. 2d 69 (Fla. 5th DCA 1981)